WASHINGTON ― The Supreme Court tends to take a skeptical view whenever the government polices speech it doesn’t like. But what if the government simply denies a trademark that it deems offensive to a racial or ethnic group?
The U.S. Patent and Trademark Office did exactly that when it rejected a trademark application from The Slants, an Asian-American band that aims to promote its name and music to tear down racial stereotypes — and maybe even stick it to a certain Washington football team the band’s leader is not very fond of.
But to offend fellow Asian-Americans? Perish the thought.
The justices on Wednesday wrestled with whether a provision of trademark law that tells the federal trademark office to not give its seal of approval to names that “may disparage” others is consistent with the First Amendment. An appeals court that specializes in trademark disputes concluded that it doesn’t, and it struck down the provision as unconstitutional “viewpoint discrimination.”
The issue is a fascinating one, in part because of the scores of advocates on both sides of this controversy who are throwing their hats in the ring. Native American groups, for one, support the government, which in 2014 also canceled a little football trademark that now finds its owner, Daniel Snyder, rooting for The Slants. The band’s case may save or doom the team’s chances at keeping “Redskins.”
The Obama administration, on its last day of legal arguments before the next regime takes over, said nothing in the trademark provision prevents The Slants from using the name, let alone impede its music or message. Instead, the government’s lawyer said, the anti-disparagement provision “places a reasonable limit on access to a government program” that “does not violate the First Amendment.”
But some of the justices didn’t seem so convinced, or at least seemed to be playing devil’s advocate. Chief Justice John Roberts called the government’s argument “circular,” and Justice Stephen Breyer had questions about the “purpose” of a law that tells the powers that be what’s good and what isn’t.
“I can think probably of ... perhaps 50,000 examples of instances where the space the trademark provides is used for very distracting messages,” Breyer said, later adding, “What business does Congress have picking out this one but letting all the other distractions exist?”
Justice Elena Kagan, one of the more active questioners on the bench, took issue with what appears to be the government’s censorious view on trademarks it deems negative but not with those it deems positive.
The law “precludes disparagement of Democrats and Republicans alike, and so forth and so on,” Kagan said, “but it makes a very important distinction, which is that you can say good things about some person or group but you can’t say bad things about some person or group.”
“The point is that I can say good things about something, but I can’t say bad things about something,” she added. “And I would have thought that that was a fairly classic case of viewpoint discrimination.”
The point is that I can say good things about something, but I can’t say bad things about something. And I would have thought that that was a fairly classic case of viewpoint discrimination. Justice Elena Kagan
If the Supreme Court were to find that the trademark office is engaging in such discrimination — and a bevy of free-speech, business and evenreligious advocates submitted briefs to the court arguing that it is — then the law violates the First Amendment.
But does it? Justice Sonia Sotomayor suggested that The Slants’ music and message “are not being burdened in any traditional way” because they can still do everything a band does — even sue another band for appropriating its name — except without a trademark.
“No one is stopping your client from calling itself The Slants,” she told the Portland, Oregon, band’s lawyer, John Connell. “No one is stopping them from advertising themselves that way, or signing contracts that way or engaging in any activity, except that stopping someone else from using the same trademark.”
Asked by Breyer whether the government could deny a trademark calling someone a name or a food product lethal, Connell took a hard-line approach and said no. But that exposed a limit to The Slants’ argument.
“Oh, my goodness,” Breyer exclaimed. “There are laws all over the place that stop you from saying that a competitor … has bad products. It’s called product disparagement. There are laws all over the place that stop you from saying Joe Jones is a jerk or something more specific. They’re called libel laws or slander laws. But you’re saying the government couldn’t do that?”
If the Supreme Court decides that a trademark shouldn’t be treated like “speech in a public park,” as Justice Anthony Kennedy suggested, and instead is just a government program that may freely avoid certain racial and ethnic slurs, then The Slants would lose.
But in other ways, The Slants will have already won.
With or without the trademark, it would not be a stretch to say that the indie band has garnered more press for what it stands for than many others in its field. And it even has a song to show for it.